Citation Nr: 0033836
Decision Date: 12/28/00 Archive Date: 01/03/01
DOCKET NO. 97-22 337 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to waiver of pension overpayment in the amount
of $3,810.00.
2. Entitlement to special monthly pension based upon a need
for aid and attendance or housebound status.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Marisa Kim, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1953 to
October 1956.
This appeal is before the Board of Veterans' Appeals (Board)
from decisions from the Portland, Oregon, Department of
Veterans Affairs (VA) Regional Office (RO). In February
1997, the Committee on Waivers and Compromises (COWC) denied
a waiver of pension overpayment in the amount of $3,810.00.
The August 1998 and April 1999 rating decisions denied aid
and attendance and housebound benefits.
FINDINGS OF FACT
1. Recovery of the pension overpayment would cause undue
hardship to the veteran by depriving him of basic
necessities, including access to VA medical care.
2. The veteran is not a patient in a nursing home on account
of mental or physical incapacity; he is not blind or nearly
blind with corrected vision of 5/200 or less in both eyes, or
with central field of vision of 5 degrees or less. His
disabilities do not render him unable to care for his daily
needs or to protect himself from the hazards and dangers
incident to his daily living environment.
3. The veteran is not substantially confined to his dwelling
and the immediate premises.
CONCLUSIONS OF LAW
1. Recovery of the VA pension overpayment of $3,810.00 would
be against equity and good conscience. 38 U.S.C.A. § 5302
(West 1991 & Supp. 2000); 38 C.F.R. §§ 1.962, 1.963, 1.965
(2000).
2. A special monthly pension based upon a need for regular
aid and attendance or housebound status is not warranted.
38 U.S.C.A. §§ 1502, 1521 (West 1991 & Supp. 2000); 38 C.F.R.
§§ 3.351, 3.352(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Entitlement to waiver of pension overpayment in the amount of
$3,810.00
An April 1995 letter notified the veteran of the initial
award of pension benefits, retroactively starting June 1994.
In November 1996, the RO learned that the veteran had
received monthly payments of $422.00 from Social Security
since March 1996, resulting in an overpayment of VA pension
benefits of $3,810.00. The veteran contends that a waiver of
pension overpayment is warranted because of extreme financial
hardship.
In February 1997, the COWC constructively found that the
veteran was free of fraud, misrepresentation, or bad faith
and denied a waiver based upon considerations of equity and
good conscience. Recovery of overpayments of any benefits
made under laws administered by the VA shall be waived if
there is no indication of fraud, misrepresentation, or bad
faith on the part of the person or persons having an interest
in obtaining the waiver and recovery of the indebtedness from
the payee who received such benefits would be against equity
and good conscience. 38 C.F.R. § 1.963(a) (2000); Cullen v.
Brown, 5 Vet. App. 510, 511 (1993).
The standard "Equity and Good Conscience" will be applied
when the facts and circumstances in a particular case
indicate a need for reasonableness and moderation in the
exercise of the Government's rights. The decision reached
should not be unduly favorable or adverse to either side.
The phrase "Equity and Good Conscience" means arriving at a
fair decision between the obligor and the Government. In
making this determination, consideration will be given to the
following elements, which are not intended to be all-
inclusive: (1) Fault of the debtor. Where actions of the
debtor contribute to the creation of the debt; (2) Balancing
of faults. Weighing fault of debtor against Department of
Veterans Affairs fault; (3) Undue hardship. Whether
collection would deprive debtor or family of basic
necessities; (4) Defeat the purpose. Whether withholding of
benefits or recovery would nullify the objective for which
benefits were intended; (5) Unjust enrichment. Failure to
make restitution would result in unfair gain to the debtor;
(6) Changing position to one's detriment. Reliance on
Department of Veterans Affairs benefits results in
relinquishment of a valuable right or incurrence of a legal
obligation. 38 C.F.R. § 1.965(a) (1998); Cullen, 5 Vet. App.
at 511-12. The list of elements contained in the regulation
is not, however, all inclusive. See Ridings v. Brown, 6 Vet.
App. 544, 546 (1994).
With respect to the actions of the veteran, the overpayment
of pension was created because the veteran's May 1994 Income-
Net Worth and Employment Statement listed zero Social
Security income. Almost a year of overpayments had
accumulated before the veteran informed the VA in February
1997 that he had received Social Security income since March
1996.
With respect to balancing the faults of the veteran and of
the VA, the veteran is at greater fault because he was
obligated to report income changes and because the evidence
does not show the VA at fault. The veteran received the RO's
December 1995 letter, which reminded him to tell the VA
immediately of any change in income, because the letter was
mailed to the veteran and was not returned as undeliverable.
The law requires only that the VA mail a notice; it then
presumes the regularity of the administrative process "in the
absence of clear evidence to the contrary." Mindenhall v.
Brown, 7 Vet. App. 271 (1994). The Board notes, however,
that the May 1994 Income Statement truthfully stated zero
income from Social Security because the veteran did not
receive Social Security benefits until March 1996.
With respect to undue hardship, an analysis of the veteran's
February 1997 Financial Status Report and several Income
Statements reveal that his sole, fixed income is $434.00 from
Social Security and $273.00 from the VA, that he is an
unemployed 66-year-old with a high school education, that he
has no savings and almost no cash on hand, and no
possessions. His listed monthly expenses of $448.00 include
rent, food, utilities, and dry cleaning, but make no
allocation for travel and lodging expenses while seeking
treatment at the nearest VA Medical Center, medical needs,
telephone, health insurance, clothing, or child support. In
lay statements, the veteran reported that each time he was
treated at the nearest VA Medical Center, he had to travel
200 miles round-trip on Greyhound Bus and stay overnight at a
motel. The March 1999 VA examiner noted that the veteran
went without hearing aids and eyeglasses because he could not
afford them. A cashier's check, dated May 1995, also shows
that the veteran made a lump sump child support payment of
$3,000 to his former wife. In this veteran's case,
collection of the debt would cause undue hardship because it
would deprive him of the basic necessities, including access
to VA medical care. As to financial hardship, such a finding
would be justified if collection would deprive the veteran of
food, clothing, shelter, or other basic necessities. Cullen,
5 Vet. App. at 512.
With respect to defeating the purpose of VA disability
compensation, it would take the veteran approximately 15
months to repay $3,810.00 if the VA were to monthly withhold
$259, the difference between his February 1997 monthly net
income and total monthly expenses. That is, for 15 months,
the veteran would not have access to VA medical care or be
any closer to having eyeglasses or hearing aids. The veteran
cannot reasonably anticipate gainful employment in the future
to compensate for the loss of $259.00 per month because he is
an unemployed 66-year-old with a high school education who
has been rated 80 percent disabled for chronic obstructive
pulmonary disease, hypertension, fractures of the right
ankle, vision impairment, and hearing loss, among other
disabilities. See Cullen, 5 Vet. App. at 513. The February
1997 Financial Status Report and lay statements show that a
reduction of $259.00 from the veteran's monthly income would
literally deprive him of access to VA medical care and
certainly defeat at least one of the purposes for which he
receives VA disability benefits.
With respect to unjust enrichment, it is true that the
veteran received a windfall for the months that he received
VA overpayments. With respect to the veteran's reliance upon
VA payments to his detriment, the evidence does not show that
he relinquished a valuable right in reliance upon VA
benefits. Certainly, he did not relinquish Social Security
payments. Nor did he incur a legal obligation because the
February 1997 Financial Status Report shows no installment
contracts or other debts.
The veteran will receive the benefit of the doubt because the
evidence is in approximate balance for and against a waiver
of overpayment. If the evidence is in equipoise, application
of the benefit of the doubt standard tips the balance in
favor of the veteran and the veteran again prevails on the
claim. Only if the preponderance of the evidence goes
against the claim will the appellant be denied the benefit
sought. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Entitlement to special monthly pension based upon a need for
aid and attendance
or housebound status
The veteran was deemed to be permanently and totally disabled
by rating decision of April 1995, effective in June 1994.
The veteran's June 1997 statement raised an inferred claim
for special monthly pension based on the need for regular aid
and attendance or housebound status. The veteran asserts
that he has been helpless and trapped at home since he broke
his ankle in February 1997.
With respect to a special monthly pension based upon a need
for aid and attendance, need for aid and attendance means
helplessness or being so nearly helpless as to require the
regular aid and attendance of another person. 38 C.F.R.
§ 3.351(b) (2000). The veteran will be considered in need of
regular aid and attendance if he or she: (1) is blind or so
nearly blind as to have corrected visual acuity of 5/200 or
less, in both eyes, or concentric contraction of the visual
field to 5 degrees or less; or (2) is a patient in a nursing
home because of mental or physical incapacity; or (3)
establishes a factual need for aid and attendance under the
criteria set forth in Sec. 3.352(a), which includes inability
of claimant to dress or undress himself, or to keep himself
ordinarily clean and presentable; frequent need of adjustment
of any special prosthetic or orthopedic appliances which by
reason of the particular disability cannot be done without
aid (this will not include the adjustment of appliances which
normal persons would be unable to adjust without aid, such as
supports, belts, lacing at the back, etc.); inability of
claimant to feed himself through loss of coordination of
upper extremities or through extreme weakness; inability to
attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to
his or her daily environment. ``Bedridden'' will be a proper
basis for the determination. For the purpose of this
paragraph ``bedridden'' will be that condition which, through
its essential character, actually requires that the claimant
remain in bed. The fact that claimant has voluntarily taken
to bed or that a physician has prescribed rest in bed for the
greater or lesser part of the day to promote convalescence or
cure will not suffice. It is not required that all of the
disabling conditions enumerated in this paragraph be found to
exist before a favorable rating may be made. The particular
personal functions which the veteran is unable to perform
should be considered in connection with his or her condition
as a whole. It is only necessary that the evidence establish
that the veteran is so helpless as to need regular aid and
attendance, not that there be a constant need.
Determinations that the veteran is so helpless, as to be in
need of regular aid and attendance will not be based solely
upon an opinion that the claimant's condition is such as
would require him or her to be in bed. They must be based on
the actual requirement of personal assistance from others.
38 U.S.C. 1502(b) (West 1991 & Supp. 2000); 38 C.F.R.
§§ 3.351(c), 3.352(a) (2000).
A preponderance of the evidence is against a special monthly
pension based upon the need for aid and attendance. The
veteran is not blind or so nearly blind as to have corrected
visual acuity of 5/200 or less in both eyes or concentric
contraction of the visual field to 5 degrees or less. In
March 1995, he was able to read 20/70 equivalent print at
near without glasses. He told the March 1999 VA examiner
that, although he had not yet purchased eyeglasses, he read
with the aid of a magnifying glass, and throughout this
appeal, the veteran has handwritten legible statements for
the record. The veteran is also not a patient in a nursing
home because of mental or physical incapacity. In February
1999, he testified that he had lived in his apartment for 13
months, and in May 2000, he told the VA examiner that he had
lived in an apartment in the same city for the last five
years. Although the veteran claimed that he was in a nursing
home, the record shows that he was hospitalized for less than
a week when he injured his ankle in February 1997. Nor can
the veteran establish a factual need for aid and attendance
under the criteria set forth in Sec. 3.352(a). He dressed
himself for the March 1999 and May 2000 VA examinations.
Although his clothes were disheveled and his socks filthy,
his February 2000 Financial Status Report allocated $40 per
month for dry cleaning. In February 1999, he testified that
he was able to feed himself and he denied incontinence
problems to the March 1999 VA examiner. Although the veteran
has surgical screws in his ankle, the evidence does not show
use of a special prosthetic or orthopedic appliance that
would require adjustment with another person's help. The
veteran is far from bedridden because he testified that he
gets out of the house every day. He further testified that
he can "take care of himself." A preponderance of the
evidence is against a grant of a special monthly pension for
aid and attendance because the criteria have not been met.
If a veteran is entitled to a nonservice-connected pension,
but is not in need of regular aid and attendance, he may meet
the criteria for special monthly pension by being housebound.
38 C.F.R. § 3.351(d) (2000). To qualify, the veteran must
have a single disability rated 100 percent disabling under
the Schedule for Rating Disabilities and have additional
disability or disabilities independently ratable at 60
percent or more, separate and distinct from the permanent
disability rated as 100 percent disabling and involving
different anatomical segments or bodily systems. The veteran
can also meet the criteria for special monthly compensation
if he has a single permanent disability rated 100 percent and
is "permanently housebound" by reason of his disability or
disabilities. This requirement of "permanently housebound"
is met when the veteran is substantially confined to his or
her dwelling and the immediate premises or, if
institutionalized, to the ward or clinical area, and it is
reasonably certain that the disability or disabilities and
resultant confinement will continue throughout his or her
lifetime. 38 U.S.C. 1502(c) (West 1991 & Supp. 2000);
38 C.F.R. § 3.351(d) (2000).
A preponderance of the evidence is against a special monthly
pension based upon housebound status. The veteran has no
current disabilities rated as 100 percent disabling, and he
is not substantially confined to his dwelling and the
immediate premises. In order to attend the March 1999 and
May 2000 VA examinations, the veteran traveled over 200 miles
round-trip by Greyhound Bus and stayed overnight in motels.
He testified in February 1999 that he regularly walks 3
blocks to a gas station to buy beer and cigarettes. Although
the grocery store is 20 blocks from home, he reported in
February 1999 and March 1999 that he walks to the market and
does his own shopping at least once a month. He went
shopping and bought his record player at a Salvation Army
store. He testified that he was kicked out of a treatment
program because he walked to a public restaurant, where he
was caught gambling on poker machines. He even injured his
ankle in February 1997 while walking home from a night on the
town. He testified that his neighbors called him "hotrod"
because he moves very fast and gets out of the house
regularly. A preponderance of the evidence is against a
grant of a special monthly pension based on housebound
status.
ORDER
Entitlement to waiver of pension overpayment in the amount of
$3,810.00 is granted.
Entitlement to special monthly pension based upon a need for
aid and attendance or housebound status is denied.
Mark J. Swiatek
Acting Veterans Law Judge
Board of Veterans' Appeals